GINGER L HUTCHISON V OAKLAND CHRISTIAN SCHL FOUNDATION
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STATE OF MICHIGAN
COURT OF APPEALS
GINGER L. HUTCHISON,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 181270
LC No. 94-469854
OAKLAND CHRISTIAN SCHOOL
FOUNDATION, OAKLAND CHRISTIAN
SCHOOL ASSOCIATION, RANDALL
JOHNSON, and ROGER VAN DORP,
Defendants-Appellees.
Before: Smolenski, P.J., and Holbrook, Jr. and F.D. Brouillette,* JJ.
BROUILLETTE, J. (dissenting).
I respectfully dissent from the decision above set forth. I agree that the trial judge properly
denied the motion for authorization to file a second amended complaint. I agree that the summary
disposition motion should be granted as to the Oakland Christian School Foundation. I disagree with
the majority on the issue of whether or not there is a genuine issue of material fact regarding whether
Mr. Johnson was acting within the course and scope of his employment at the time of plaintiff’s injury.
A motion for summary disposition based upon MCR 2.116(C)(10) tests whether there is factual
support for a claim. Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). Such a motion should
be granted only if the moving party is entitled to judgment as a matter of law. Borman v State Farm
Fire & Casualty Co, 198 Mich App 675; 499 NW2d 419 (1993). The benefit of any reasonable
doubt must be given to the non-moving party and the court must determine whether a record could be
developed which might leave open an issue upon which reasonable minds could differ. Farm Bureau
Mut Ins Co of Michigan v Stark, 437 Mich 175; 468 NW2d 498 (1991).
Randall Johnson was an employee of defendant Oakland Christian School Association.
Because it was a small school Mr. Johnson was an instructor and the Dean of Students and a counselor.
As such, some of the factual evidence indicates, he worked closely with the students both during school
* Circuit judge, sitting on the Court of Appeals by assignment.
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hours and after. There was evidence that Mr. Johnson on multiple occasions joined his students in toilet
papering each others residences. Plans for the toilet papering, the evidence suggests, were made during
school hours and on at least one occasion, a video tape of the toilet papering was shown in class by Mr.
Johnson. On the occasion in question plans for the toilet papering were made during school hours and
the toilet papering occurred at the home of Mr. Johnson which was immediately adjacent to the home of
defendant Roger Van Dorp who was the principal. There was some evidence that Mr. Van Dorp knew
what was going on and playfully involved himself. As a direct aftermath of the toilet papering on the
night of the incident defendant Johnson dropped the Plaintiff causing her physical injuries.
An employer can be held liable for the negligent acts of his employee under a doctrine of
respondeat superior. Bradley v Stevens, 329 Mich 556; 46 NW2d 382 (1951). An employer is
liable for the acts of his employee when the employee is acting within the scope of his authority. Graves
v Wayne County, 124 Mich App 36; 333 NW2d 740 (1983). The issue of whether the employee
was acting within the scope of his employment is generally one for the trier of fact. Bryant v Brannen,
180 Mich App 87; 446 NW2d 847 (1989).
The plaintiff had presented evidence to the trial court about the activities of Mr. Johnson and
about their involvement of Mr. Van Drop and concerning the positions of authority that those persons
held within the school. A formal resolution by a board of education is not required before a finding can
be made that an employee was acting within the scope of his authority. Circumstantial evidence can be
utilized to prove a fact. In this case, along with other proffered evidence, the evidence that plaintiff
offered to show that Mr. Johnson felt that toilet papering was a part of his counseling and could make a
student feel that they were a part of the student body could be considered as circumstantial evidence
that Mr. Johnson was acting within the scope of his authority. Jurors are to use their reason and
common sense based upon the facts presented and are qualified to decide the facts unless a claim is so
clearly unenforceable as a matter of law that no factual development could possibly justify a right to
recovery Wade v Dep’t of Corrections, 439 Mich 158; 483 NW2d 26 (1992).
I believe the evidence presented by plaintiff creates an issue of fact so as to avoid the granting of
a summary disposition motion based on MCR 2.116(C)(10). I would reverse.
/s/ Francis D. Brouillette
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